LEPASAAR A SMIGELSKITE proti Estonsku

THIRD SECTION

DECISION

Applications nos. 55082/19 and 55095/19
Gunnar LEPASAAR and
Aneli SMIGELSKITE
against Estonia

The European Court of Human Rights (Third Section), sitting on 28 February 2023 as a Committee composed of:

Yonko Grozev, President,
Peeter Roosma,
Ioannis Ktistakis, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the applications against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”), on the dates indicated therein;

the decision to give notice of the complaints under Article 1 of Protocol No. 1 of the Convention concerning a lack of compensation for land-use restrictions and under Article 13 of the Convention concerning the lack of an effective remedy in that respect to the Estonian Government (“the Government”), represented initially by their Agent, Ms M. Kuurberg, Representative of Estonia to the European Court of Human Rights, and subsequently by Mr T. Kolk, her successor in that office, and to declare inadmissible the remainder of the applications, indicated as partial decisions in the appended table;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The applications concern environmental restrictions which limit the use of the applicants’ land for its intended purpose (sihtotstarbeline kasutamine) and the alleged impossibility of obtaining adequate compensation for such restrictions under domestic law.

2. The applicants Mr Lepasaar (hereinafter “the first applicant”) and Ms Šmigelskite (hereinafter “the second applicant”) bought their plots of land from the State in the early 2000s and have to pay for them by way of instalments until 2050. The plots were and still are designated as “profit-yielding land” (maatulundusmaa). Between 2007 and 2014 the applicants were able to harvest timber in accordance with the forest management plan (metsamajandamiskava) after obtaining approval from the Environmental Board.

3. In 2014 the Environmental Board suspended the second applicant’s permission to fell timber pending the creation of a species protection site (püsielupaik) for the purpose of protecting flying squirrels (Pteromys Volans; lendoravad). The second applicant brought an action asking the courts to declare the suspension unlawful and, relying on section 16 of the State Liability Act (hereinafter “the SLA”), claimed damages for the suspension. The domestic courts dismissed her claim, finding that the effects of the temporary suspension were not particularly onerous for the applicant.

4. In 2016 the Minister for the Environment adopted a regulation (“the regulation”) by which the applicants’ plots of land were included in a species protection site. As a result, out of the two plots owned by the first applicant, 45% of one plot and 20% of the other plot, and almost all of the plot owned by the second applicant, were included in the species protection site. In terms of environmental restrictions, a limited management regime (piiranguvöönd) applied in the affected parts of both of the first applicant’s plots, whereas the regime applicable to the second applicant’s plot included both the limited management regime (93% of the plot) and a conservation zone regime (sihtkaitsevöönd).

5. The applicants challenged the incorporation of their land in the protected site and asked for the annulment (tühistamiskaebus) of the regulation. They argued that the land-use restrictions (notably the limitations on felling timber) led to the de facto expropriation of their property and that domestic law did not provide an adequate compensation scheme for such restrictions. They also referred to their legitimate expectations, questioned whether there were any flying squirrels on their land and referred to administrative errors in the way the regulation had been adopted.

6. The domestic courts dismissed their action. They noted, among other things, that the relevant restrictions, albeit considerable, did not exclude the intended use of the land. The land had thus not been de facto expropriated. The courts noted that the applicants could benefit from reduced land tax (maamaks) and, to some extent, from Natura 2000 compensation. They also remarked that the applicants had not lodged a compensation claim (kahju hüvitamise nõue), nor had they asked the State to purchase their land under the Nature Conservation Act (looduskaitseseadus), and that the courts could therefore not address these issues.

7. The applicants complained, relying on Article 1 of Protocol No. 1 to the Convention, that the environmental restrictions had led to the de facto expropriation of their property, whereas they had not been offered adequate compensation. Under Article 13 of the Convention, they complained of not having any effective remedies under domestic law to claim compensation for the above-mentioned restrictions.

THE COURT’S ASSESSMENT

1. Joinder of applications

8. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

2. Alleged violation of Article 1 of Protocol No. 1 to the Convention

9. In view of the applicants’ complaints and the Government’s observations regarding admissibility, the key question is whether the applicants exhausted effective domestic remedies before lodging their application with the Court.

1. Action for annulment

10. The core of the applicants’ complaint before the Court is that they were not afforded reasonable compensation for the environmental restrictions imposed on their land, which in their view amounted to de facto expropriation of their property.

11. In the domestic courts the applicants sought the annulment of the regulation by which their land been included in the species protection site. Their arguments concerned the lawfulness of the regulation as well as the manner in which it had been adopted. They also referred to the lack of compensation (see paragraph 5 above) but did not lodge a claim for damages.

12. The Court cannot fault the applicants for having attempted to obtain the annulment of the regulation in so far as it concerned their property. However, the applicants have not argued that, or presented any examples of domestic case-law according to which, a decision on compensation would have to be incorporated into the legal act placing certain plots under environmental protection, failing which the legal act in question would be unlawful.

13. The Court cannot therefore accept that an annulment action constituted an effective remedy with respect to the complaint the applicants subsequently lodged with the Court.

2. Other legal remedies

14. The domestic courts, besides referring to a land tax reduction and a possibility to apply for Natura 2000 compensation, referred to a claim for damages, as well as the possibility of asking the State to purchase the applicants’ plots as possible avenues for obtaining compensation. The Court recalls in this respect that, as a general rule, to be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success. However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress. An applicant should do everything that could reasonably be expected of him or her to exhaust domestic remedies. The Court may conclude that applicants have not exhausted domestic remedies when they failed to use the remedy suggested by the domestic courts, unless it could be regarded as obviously futile (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 69-77, 25 March 2014, and P. v. Ukraine (dec.), no. 40296/16, § 54, 11 June 2019).

(a) Remedies under State Liability Act

15. As for the claim for damages, the Government referred to the possibility of lodging claims under sections 14 and 16 of the SLA.

16. Article 16 of the SLA allows for compensation claims for pecuniary damage caused by a lawful administrative act which restricts the fundamental rights of a person in an extraordinary manner.

17. The Court is mindful of the applicants’ argument that the domestic courts have so far not granted compensation for environmental restrictions under this section. However, it appears from the domestic case-law cited by the Government that the courts can assess the actual impact of various public‑interest restrictions, including environmental restrictions, on a case‑by-case basis (see the Supreme Court’s judgments of 17 April 2012 in case no. 3-4-1-25-11, §§ 47-48 and 50; of 11 March 2013 in case no. 3‑2‑1‑87-14, § 35; and of 15 June 2021 in case no. 5-21-3, §§ 35-36). It has also been acknowledged that the environmental restrictions can amount to de facto expropriation (see the Supreme Court’s judgment of 15 June 2021 in case no. 5-21-3, § 33). In the above-mentioned case no. 3-16-245, the Supreme Court did not rule out the possibility of claiming for certain type of loss under section 16 of the SLA, but referred the exact assessment of damages to the lower-instance courts.

18. The core of the applicants’ argument is that the restrictions applied to their plots of land and in their circumstances amounted, in substance, to expropriation. On the basis of the above, and depending on the type of loss for which the applicants would want to claim damages, the Court cannot conclude that the applicants’ potential claims under section 16 of the SLA would have had no reasonable prospects of success.

19. The Court does not consider that by claiming damages under section 16 of the SLA for the temporary suspension of permission to fell timber (see paragraph 3 above), the second applicant had already made use of this remedy for the purposes of her complaint before the Court. The fact that the domestic courts did not award her damages for the temporary restrictions does not prevent those courts from seeing the situation differently in the case of indefinite restrictions, as is the subject matter of the case at hand.

20. Having considered that the possible compensation claims for pecuniary damage under Article 16 of the SLA were not devoid of reasonable prospects of success, the Court does not find it necessary to assess whether the applicants could have, in the alternative, lodged a compensation claim under Article 14 of the SLA.

(b) Remedy under Nature Conservation Act

21. The domestic courts also referred to the possibility under section 20 of the Nature Conservation Act of asking the State to purchase the plots in question. Under this provision, the State could purchase the land or part of it in the event that its use for its intended purpose was “significantly hindered by the protection regime”. The criteria for what is considered to constitute “significant hindrance” are further specified in regulation no. 242 issued by the Government in 2004.

22. There is no disagreement between the parties that in accordance with regulation no. 242, as in force at the material time, the restrictions applicable to the applicants’ plots under the limited management regime (see paragraph 4 above) did not meet the criteria of posing “significant hindrance” to the plots’ intended use.

23. The Government suggested that the applicants could have nonetheless asked the State to purchase their plots and could have argued, in any subsequent court proceedings were the State to refuse, that the relevant criteria were unconstitutional in so far as they did not extend to cover the applicants’ situation.

24. The Court considers that, given the operation of the constitutional review mechanism in Estonia, there might indeed be cases where making use of an effective domestic remedy would entail claiming that domestic substantive law or procedural rules were unconstitutional (see Fizgejer v. Estonia (dec.), no. 43480/17, §§ 70-77, 2 June 2020, and Angerjärv and Greinoman v. Estonia, nos. 16358/18 and 34964/18, § 77, 4 October 2022).

25. Accordingly, given that the applicants claim that they were not only hindered but in effect prevented from using their forest land for its intended purpose, it cannot be said that their case would not have had any reasonable prospects of success. The Court does not find anything in the parties’ submissions to support the applicants’ assertion of a futility of such remedy.

3. Conclusion as to the exhaustion of domestic remedies

26. In the domestic proceedings the applicants only sought the annulment of the regulation adopted by the Minister for the Environment and did not use any other above-mentioned remedies. The domestic courts were thus not afforded a chance to assess whether in the domestic legal framework (which already included a land-tax reduction and a possibility to apply for a Natura 2000 compensation) a fair balance was struck between the general interest of nature conservation and the applicants’ private interests. The Court therefore concludes that the applicants’ complaint under Article 1 of Protocol No. 1 to the Convention must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

3. Alleged violation of Article 13 of the Convention

27. Given that the Court has established above that the applicants had at their disposal remedies which offered reasonable prospects of success, their complaint under Article 13 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 23 March 2023.

Olga Chernishova Yonko Grozev
Deputy Registrar President

Appendix

List of cases: